INTRODUCTION
The Delhi Municipal Corporation Act 1957 (hereinafter DMC Act) grants power to Commissioner to issue an order of demolition of structures or buildings in Delhi under Chapter XVI of the DMC Act. The commissioner is appointed as per Section 54 and empowered under Section 330A of the DMC Act. Chapter XVI states confer a wide range of power to the commissioner in relation to building regulation which includes an order of demolition, stoppage of work, alteration of work and to seal unauthorised constructions if construction is contrary to the provision of the Act or the Unified Building Bye-Laws 2016. However, every such action of demolition has to be taken by the Commissioner by following the procedure prescribed in the Act. Against the demolition order, depending on the nature of order and the circumstances, an aggrieved person may either approach the Appellate Tribunal in appeal or before the Hon’ble High Court in writ petition. In this Article, I try to analyse the law pertaining to demolition of buildings and remedies thereof.
BUILDING SANCTIONS
In order to erect a building as defined under Section 331 or to make any addition or alteration or repair of buildings, the previous sanction of the commissioner is mandatory as per Section 332. In order to attain the sanction of the commissioner, a person (here owner) is required to give notice in writing of his intention (erect/re-erect/repair/alteration) to the commissioner in form as prescribed under Unified Building Bye-Laws 2016. The notice has to enclose the ownership documents, the complete address of the area, a building plan, and tentative dates of start and completion of work.
On receiving the notice, the Commissioner may grant the sanction for the execution of the work for which the notice was intended or may refuse the sanction as per Section 336 of the DMC Act. If the commissioner chooses to refuse sanction, he must communicate the same to the applicant. On receiving the sanction, the person is allowed to erect the building or do anything as per the wide meaning prescribed under Section 313 and has to mandatorily start the work within 7 days of receiving the sanction as per Section 336 DMC Act. But if the execution of any work or erection of a building for which sanction has been obtained contravenes any of the provisions of this Act or bye-laws, the Commissioner may order demolition and stoppage of building and works as per Section 343 DMC Act, and may also order directing the sealing of such erection or work as per Section 345A of the DMC Act.
POWER OF DEMOLITION
Commissioner has the power to order for the demolition of the building or premise due to a number of reasons which include-
Construction without or contrary to Sanction: Section 343
If any erection of building or any execution of work has been carried on or has been completed without the sanction of the commissioner or contrary to the sanction obtained or is contrary to any provision of the DMC Act, or the Unified Building Bye-Laws 2016 the commissioner may order such erection or work to be demolished. The commissioner by order addressed to the person ‘at whose instance the construction is carried’ direct him to demolish the work within specified period not being less than five days and more than fifteen days. The reason of demolition must also be mentioned in the order and a reasonable opportunity shall be given to the person to show cause why the order should not be executed. The Delhi HC in case of Bal Kishan Das vs Municipal Corporation of Delhi[i] has held that the show cause notice is a mandatory requirement of law.
The phrase ‘at whose instance such work is commenced’ is vital. As ‘show cause notice’ is served only upon that person at whose instance the work is carried on. In Dr. Mrs. R.A. Bhujwala & Ors v. Municipal Corporation of Delhi & Ors[ii] Hon’ble Delhi High Court held that “only the persons at whom instance the impugned erection or construction work has been commenced would be entitled to a notice to show cause. The subsequent purchasers of the constructed building or a portion of building are not entitled to the notice to show cause before demolition”. Let’s understand this with an example. ‘Aman’ has constructed the property ‘A’ without obtaining the sanction u/s 336 of DMC act. After the completion of work, property ‘A’ has been sold to Raghav. Thus, the commissioner before giving the order of demolition shall give the ‘show cause notice’ to Aman and not to Raghav as the construction is carried on at the instance of Aman and not Raghav.
Remedy against the Demolition Order
Any person aggrieved by the order of Commissioner to demolish under Section 343 may refer an appeal to the Appellate Tribunal constituted under Section 347A. The time period for filing appeal is same within which the aggrieved person is directed to demolish the work i.e., within period not being less than five days and more than fifteen days. If the building work is complete the appellate tribunal will stay the enforcement of order of demolition and if the work is still in progress appellate tribunal will take security from the appellant that the work will not be carried out till the disposal of the appeal.
No other court has any authority to entertain any case against the order of the commissioner. Though there is absolute bar upon any court to entertain any grievance arising out of demolition order but in case of jurisdictional error, the civil court will have the jurisdiction and the suit challenging the demolition order under section 343(1) would be maintainable and in no other case. In Shiv Kumar Chadha v. Municipal Corporation of Delhi & Ors[iii] Apex Court observed that “it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases, where the court is of prima facie opinion that the order is nullity in the eyes of law because of any “jurisdictional error” on the part of the Corporation is established, a suit shall be maintainable.
Removal of dangerous buildings: Section 348
Where it appears to the Commissioner that any building is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building, then he may in order to prevent the danger arising therefrom, by written order require the owner or occupier of such building to demolish such building or carry out repair etc. This does not mean that wherever commissioner finds any building in a ruinous or dangerous condition he will give the order of the demolition. He must assess the danger and wherever possible must resort to the best available solution to remove such danger.
In MCD v. Hukam Chand Jain[iv] Hon’ble High Court observed that the object of section 348 of the Act is to confer power on the Commissioner to see that there is no ruinous or dangerous building in existence within the Corporation area. This power is conferred upon the commissioner to remove the danger which can be removed by number of ways such as demolition, repair or to secure that building in such a manner so as to avoid the danger or to remove the ruinous condition of the building.
In Nand Kishore v. MCD[v] Delhi High Court held that the order under section 348(1) is a quasi-judicial order and when such order is arrived after proper hearing and consideration then such order cannot be unilaterally revised by the authority concerned except when it such order is obviously void or in the same manner as civil court can do to a judicial order under Section 151 of Civil Procedure Code.
Buildings unfit for human habitation: Section 368
Where any building is unfit for the human habitation and is not capable at a reasonable expense of being rendered so fit then the commissioner shall serve upon the owner and any other person having an interest in the building as a lessee, mortgagee or otherwise a notice to show cause that why the demolition should not be made. Then such person shall give the undertaking to the commissioner that he will within the specified time execute then requisite work in the building. If nothing has been done upon such undertaking or even no undertaking has been made then the commissioner shall order for the demolition of the building.
Breach of Layout plans: Section 314
If any person lays-out or makes any street without or otherwise than in conformity with the orders of the Standing Committee, the Commissioner may issue then show cause notice that why such street should not be altered and if it cannot be altered then why it should not be demolished. If the person fails show cause to the satisfaction of the Commissioner why such street should not be so altered or demolished then the commissioner is empowered to order for the demolition of the street.
Illegal Encroachment
Power to remove the encroachments and order demolition of such encroachments is derived from section 322 and 343 of the DMC Act. Though the act does not cite any specific difference between these two provisions but for the better understanding it can be said that former deals with the temporary structures and the latter deals with the permanent structures. Under Section 322 the commissioner without notice can remove any stall, chair, bench, box, ladder, bale or any other thing hawked or exposed for sale encroaching in any manner the public street whereas section 343 mandates the commissioner to issue the show cause noticebefore giving the order of demolition. In simple words if any person by way of temporary structure encroaches the land belonging to corporation, then the corporation can remove such structure any time without giving any notice. But where any permanent structure is erected upon the public property or even on the private land without any sanction or in contravention of the DMC act or byelaws then the commissioner first has to issue the show-cause notice and must give the time between 5 to 15 days to demolish the said structure. Supreme Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors.[vi] held that, no one has the right to encroach upon the public property and if the encroachment is the recent one then the authorities are not required to follow the procedures of natural justice such as giving of notice and opportunity of being heard. But if corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary.
Another important aspect to the order of demolition was added by Delhi HC in Sudama Singh & Others vs Government of Delhi & Anr[vii] where it was held that before the government authorities decide to evict someone from their house, they need to provide for an alternate accommodation where basic civic amenities that uphold their right to life and dignity, are available.
Jhuggi Jhopri Clusters and slum encroachments
Delhi Laws (Special Provisions) Second Act, 2011, Delhi Urban Shelter Improvement Board Act 2010, Delhi Slum and JJ Rehabilitation and Relocation Policy 2015 (hereinafter as DUSIB Policy) provides for the entire scheme for the removal, rehabilitation and relocation of Jhuggi Jhopri clusters. This policy acknowledges the obligation spelt out in Sudama Singh (supra) to provide regular housing to jhuggi dwellers. It furthers acknowledges it is only in an extraordinary situation, where in-situ rehabilitation is not possible, that resort must be had to rehabilitation by relocation. As per this, any jhuggi cluster before 01.01.2006 cannot be removed without providing for alternate housing and the jhuggis which came up in such JJ Clusters before 01.01.2015 would not be demolished without alternate housing. It further provides that no Jhuggi comes up after 01.01.2015 and if in case it comes then it is to be removed immediately without any alternate housing. For this a survey was conducted by Delhi Urban Shelter Improvement Board and the list was notified which is available on its website. In Ajay Maken v. Union of India[viii], Delhi High Court held that once a cluster has been identified under the DUSIB Policy, then the persons living in that JJ cluster cannot be treated as illegal encroachers and they cannot be removed from that location without being rehabilitated in accordance with the DUSIB Policy.
APPELLATE TRIBUNAL
Appellate Tribunal MCD, is a one-person body constituted by the Central Government as per Section 347A DMC Act. It is an independent statutory body not forming a department of MCD. The qualification for the presiding officer of the tribunal is a judicial officer of rank of District Judge or Additional District Judge or has held the judicial office in India for at least 10 years. The central government is empowered to determine the territorial limit within which the appellant tribunal may exercise its jurisdiction. The tribunal has a registrar and staff for discharge of its functions. The grounds of appeal to the tribunal are mentioned in Section 343 and 347B of the DMC Act.
The Appellate Tribunal apart from having power to decide appeal under DMC Act., is also empowered to deicide appeals from Delhi Development Act, New Delhi Municipal Council Act, The Slum Areas (Improvement and Clearance) Act & The Delhi Fire Prevention and Fire Safety Act.
Address of Appellate Tribunal
The Tribunal is situated in Room No.29, District Courts Complex, Tis Hazari, Delhi.
Presiding Officer– Shri. Pitambar Dutt (05.01 2022- Present).
Nature of Order for Appeal before the Appellate Tribunal
Person aggrieved by the following orders may prefer appeal before the Appellate Tribunal against-
- Demolition order given by the Commissioner under Section 343.
- An order of commissioner allowing or disallowing the sanction to the lay-out plan for under Section 313.
- Order of commissioner directing the alteration or demolition of any street under section 314.
- A notice issued by commissioner to owner to carry out any work upon the street or part or any land or building under sub-section (1) of section 315.
- A notice issued by commissioner to owner to remove or take any action against any projection upon street under sub-section (2) of section 317.
- An order of commissioner directing the disposal of things removed under Chapter XV (streets) or seized under section 344, or an order rejecting the claim of any person for the balance of the proceeds of sale of the things disposed.
- An order sanctioning or refusing to sanction the erection of any building or the execution of any work under section 336.
- An order of commissioner withholding sanction of any building or work which is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of a public street or extension, improvement, widening or alteration of any street under the proviso to sub-section (1) of section 337.
- An order of commissioner cancelling a sanction obtained by practicing any material misrepresentation or fraud under section 338.
- An order of commissioner requiring the rounding off, splaying or cutting off the height of a building intended to be erected, or for the acquisition of any portion of a site, under section 339.
- An order of commissioner disallowing the erection of any building or the execution of any work on either side of a new street until such new street has been levelled, and wherever practicable, metalled or paved, drained, lighted and laid with a water main under section 340.
- An order of commissioner requiring the stoppage of any erection or work (which has not been completed) carried out without obtaining sanction or in contravention of DMC act or any bylaws under section 344.
- An order of commissioner requiring the alteration of any building or work carried out without obtaining sanction or in contravention of DMC act or any bylaws under section 345.
- An order of commissioner directing the sealing of unauthorised constructions under section 345A.
- An order of commissioner refusing to grant permission to design or erect a building or execute any work as the case may be under sub-section (2) of section 346.
- An order of commissioner granting or refusing permission regarding the conversion of the usage of the premise for some other use under section 347.
- Any such other order or notice relating to or arising out of planned development under the provisions of this Act as may be prescribed by rules.
Time Period for Preferring appeal
In case of order of commissioner under Section 343 the appeal is to be preferred within the period specified in the order for the demolition which is not less than five days and more than fifteen days.
In case of all other grounds as specified in 347B, the appeal is to be preferred within thirty days from the date of the order or notice appealed against. The appellant court may though condone the delay if there is sufficient cause for not filing it within that period.
Constitutional Validity of 347D
In Amrik Singh Lyallpuri v. Union of India[ix] Supreme Court observed that it is clear that the Appellate Tribunals created under the DMC Act is a quasi-judicial body with the trappings of the Civil Court which is manned by judicial officers of considerable experience. In discharging its functions, it is acting as a Civil Court in respect of some of its functions, and the proceeding before such body is a judicial proceeding. Thus, the Question here is that “Whether the Administrative Body (Administrator) can sit in appeal against the order of the judicial or quasi-judicial body”. Court after referring to case of L Chandra Kumar and other judgments held that Section 347D is violative of Article 14, Concept of Rule of law and Principle of Judicial Review and is thus declared to be unconstitutional. Court further directed that till the proper judicial authority is set up to hear appeal under section 347D, all the cases must be transferred to the District Judge, Delhi.
MAINTAINABILITY OF WRIT PETITION AGAINST THE DEMOLITION ORDER
A writ petition can be filed under Article 32 and 226 of the Constitution. Under Article 32 for the infringement of fundamental right, for e.g., if the demolition order is affecting the right to life, or livelihood of the person and under Article 226 in all cases of infringement of fundamental right or against the order of the appellant tribunal if the tribunals has acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in it or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice.
With respect of ‘unauthorised constructions’ specifically Delhi HC recently in case of Satender Singh v. DDA & Ors.[1] stated that unauthorised construction dispute involves lengthy hearings, evidences, and the court will not decide unauthorized construction in writ jurisdiction. The HC refused to entertain a PIL against alleged unauthorized construction on a government land, stating that it cannot exercise writ jurisdiction under Article 226 of the Constitution in such matters.
Article 226 provides for discretionary remedy so there is always a discretion with HC to refuse to grant the writ if satisfied that the aggrieved party can have an adequate remedy elsewhere. Where the statute itself confers the right to appeal, it is not open to High Court to entertain any petition under article 226. The power conferred by Art. 226 and 227 is supervisory and not appellate jurisdiction. It is conferred to ensure that the subordinate courts and tribunals act within the limits of their authority and in accordance with the law.
In Waryam Singh v. Amaranath[x] Supreme Court observed that power under article 227 must be sparingly exercised to keep the courts and tribunals within the authority and not to correct mere errors. In State of Maharashtra v. Milind[xi] court held that High Court will interfere in the decision of the tribunal when there is a grave miscarriage of justice, flagrant violation of law, acted arbitrarily, violated the principles of natural justice, passed a perverse order or such order which is an error of law apparent on face of record.
It is also well settled that when an alternative and equally efficacious remedy is available then the litigant must invoke the available remedy and not the special jurisdiction of the High Court u/a 226 and 227 of the constitution. In Secretary, Minor Irrigation and Rural Engineering services v. Sahngoo Ram[xii] Apex court laid down that where a special tribunal or forum is created by the statute, High court should not normally permit such persons to ventilate their specified grievances before its u/a 226. The rule of exhaustion of remedies is a flexible rule. It is a rule of policy, discretion and convenience. It is a rule of practice rather than rule of jurisdiction. So, Article 226 is not affected by the alterative remedy thus it is the discretion of the High Court to relegate the petitioner to resort to alternative remedy.
Grounds against demolition Order in Writ Petition
- Violation of principle of Natural justice
Before a demolition order is made under Section 343, the commissioner is required to give notice to the person giving them a reasonable opportunity of showing cause why such order shall not be made. This is a mandatory provision and the formality of notice cannot be negated and if the notice is not properly served and opportunity to be heard is not given before the demolition order, it is a clear violation of principle of natural justice and hence writ petition under 226 is maintainable. In case of Mahinder Singh and Ors. vs Municipal Corporation of Delhi[xiii],where the show cause notice was given in wrong name and not that of the petitioner, the court allowing the writ petition held that the service of the show cause notice must be in the name of the person concerned only, otherwise the notice is not duly served.
Though, court in series of cases had held that that mere violation of natural justice is not enough for interference under Article 226. In M.C. Mehta Vs. Union of India[xiv] the court held that where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Also, in case ofK.L. Tripathi Vs. State Bank of India[xv], the court laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. The court further held that there must have been some real prejudice to the complainant and there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the authority is acting, the subject matter to be dealt with etc.
- Legality of order
The order of the commissioner cannot be appealed before the Appellate Tribunal on ground of correctness or legality. Appellate Tribunal is constituted by the Central Government under section 347A of the DMC act. Being the statutory creation, it exercises the special jurisdiction under the act. Supreme Court in Jyoti Basu v. Debi Gosal[xvi]observed that “a Statutory Tribunal derives all its powers, jurisdiction and authority from the express provision made in the Statute by and under which it is created. It has no other powers. It cannot exercise any power vested in a Civil Court unless such power is conferred upon the Tribunal by the Statute.” Section 347C (1) r/w Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986 set out the limits on its quasi-judicial function. Tribunal can confirm, modify, annul the order or notice, and refer the same back to the authority or officer for fresh order or notice. As this is the limit which is specified with the 4 corners of the statute thus tribunal cannot adjudicate on the correctness or legality of those orders or notices. Though Rule 17 of DMC Appellate Tribunal rules gives the power to tribunal to give any order or direction as may be necessary or expedient to secure the ends of justice. This power is to be restricted to the special purpose for which it is created within its limited jurisdiction. Thus, the order of the commissioner cannot be appealed before the Appellate Tribunal on ground of correctness or legality. Correctness or legality of the order can be challenged by way of writ petition before High Court.
- An error of law on the face of record/Unlawful demolition
If the order of the appellate tribunal is on face of record erroneous and has resulted in manifest injustice, a writ petition is maintainable in High Court. The error can be unlawful demolition without following the proper procedure or wrong description of property etc. In case of Veerappa Pillai vs Raman & Raman Ltd[xvii]the court mentioned that a writ under Article 226 is maintainable where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice.
CONCLUSION
DMC Act confers very wide powers to the commissioner in terms of demolition. Being a special statute, it contains the entire scheme of action and the remedy against such powers. If the party is aggrieved with the MCD orders or notices then the redressal is itself provided within the act to approach the Appellate Tribunal. The Constitutional Jurisprudence also permits in certain special circumstances to address the grievance further to the writ court u/a 226 r/w 227 of the Constitution of India.
[1] W.P.(C) 13032/2021
[i] RSA No. 76/1991 Delivered on 31/10/2010- DHC.
[ii] 1995 SCC OnLine Del 694.
[iii] 1993 SCC 3 (161).
[iv] 6 (1970) DLT 165.
[v] 5 (1969) DLT 214.
[vi] (1997) 11 SCC 123.
[vii] WP(C) Nos.8904/2009, 7735/2007, 7317/2009 and 9246/2009.
[viii] (2019) 260 DLT 581 (DB).
[ix] Civil Appeal No 5075 of 2005 SC.
[x] AIR 1954 SC 215.
[xi] AIR 2001 SC 393.
[xii] (2002) 5 SCC 521.
[xiii] 34 (1988) DLT 118, 1988 RLR 30
[xiv] (1999 (6) SCC 237)
[xv] (1984(1) SCC 43)
[xvi] AIR 1982 SC 983.
[xvii] 1952 AIR 192, 1952 SCR 583